The Act defines wrongdoing as a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act; a misuse of public funds or a public asset; a gross mismanagement in the public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant; a serious breach of a code of conduct established under the PSDPA; and knowingly directing or counselling a person to commit a wrongdoing. Under the Act, reprisal means any measures taken against a public servant because he or she has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure. It can include any measures that could adversely affect the employment or working conditions of the person, or a threat to take any of these measures or to direct a person to do so. Key highlights of the PSDPA are as follows:
The Treasury Board must establish a code of conduct applicable to the public sector. As well, every Chief Executive must establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.
Any public servant or member of the public can disclose in confidence information about a suspected wrongdoing in the public sector.
Public servants who make a good faith disclosure and those who cooperate in investigations are protected against reprisals.
The identity of the person who made the disclosure and of the witnesses and the persons against whom disclosures are made must be protected to the extent possible.
The right to procedural fairness and natural justice of all persons involved in a disclosure process and a reprisal complaint must be respected, including those against whom an allegation or complaint is made.
PSIC has broad investigative powers under Part 11 of the Inquiries Act.
The purpose of investigations under the Act is to bring the existence of wrongdoings to the attention of Chief Executives and to make recommendations concerning corrective measures.
PSIC has exclusive jurisdiction to investigate reprisal complaints from public servants.
Investigations into disclosures of wrongdoing and reprisal complaints are to be conducted as informally and expeditiously as possible.
PSIC may apply to the Public Servants Disclosure Protection Tribunal, which can determine whether reprisals have been taken place and impose corrective measures and disciplinary actions.
The primary source of independent information about whistleblower legislation in Canada is the a registered charity that provides support for whistleblowers. In early 2007 FAIR published an analysis of the PSDPA before it came into force, listing the concerns that FAIR had expressed in its testimony to Parliament during passage of the Act. In February 2011 FAIR published an updated analysis, benefiting from its observations during four years of implementation. This document lists more than two dozen significant shortcomings under the following eight headings: 1) The scope of the law is very narrow 2) The range of avenues has been restricted rather than expanded 3) The coverage of wrongdoing excludes most real-life situations 4) The provisions for investigations and corrective action are weak 5) Most complaints of reprisal are likely to be rejected 6) The tribunal is unlikely to protect anyone 7) The entire process is shrouded in impenetrable secrecy 8) The legal strategy is perverse and ill-conceived
Implementation red flags
The agency created to administer the PSDPA - the Office of the Public Sector Integrity Commissioner - has had a troubled history. During its first three years of operation it found no cases of wrongdoing in the federal public service, and no cases of reprisal against any whistleblower. Out of more than two hundred cases received only a handful were investigated, and none of these investigations found anything amiss. Critics claimed that it is implausible that there is no wrongdoing to be found: the agency is mandated to protect about 400,000 public servants working within a system that disposes of more than half a billion dollars each day. In addition some individuals who were turned away by OPSIC have since been vindicated by other means.
Resignation of Integrity Commissioner
In October 2010 the head of OPSIC, Public Sector Integrity Commissioner Christiane Ouimet, unexpectedly resigned less than halfway through her 7-year term, following media reports that she was under investigation by Canada's Auditor General. The Auditor General's report, published in December 2010, was highly critical of Ouimet and concluded that the commissioner had failed to do her job, had been an abusive manager, and had taken reprisals against former staff members. For more than two months Ouimet refused to attend a parliamentary committee that summoned her to appear and explain her actions. When she finally did appear she claimed that she had been victimized by the Auditor General's intensive investigation, that she had done nothing wrong, and that the Auditor General's findings were incorrect. There was further controversy about Ouimet's departure when it became known that the government had paid her more than $500,000 'severance' to resign, with a gag order that prohibits her from criticizing the government. Critics claimed that she had been rewarded for incompetence and misconduct, and paid to keep quiet.
